Waterville Fisheries Development Ltd v Aquaculture Licenses Appeals Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 07 November 2014
• Neutral Citation: [2014] IEHC 522
• Court: High Court
• Date: 07 November 2014

Waterville Fisheries Development Ltd v Aquaculture Licenses Appeals Board & Ors (No 3)

BETWEEN

WATERVILLE FISHERIES DEVELOPMENT LIMITED

APPLICANT

AND

AQUACULTURE LICENSES APPEALS BOARD AND THE MINISTER FOR AGRICULTURE, FOOD AND THE MARINE (No.3)

RESPONDENTS

AND

(BY ORDER) SILVER KING SEA FOODS LIMITED T/A MARINE HARVEST IRELAND

NOTICE PARTY

[2014] IEHC 522

[No. 40 J.R./2013]

THE HIGH COURT

Fisheries & Wildlife – Practice & Procedures – Modification of costs order – Art. 11 of Directive 2011/92/EU – Environmental Impact Assessment Directive, Directive 85/337/EEC – S. 7 (1) of the Environment (Miscellaneous Provisions) Act 2011 – Whether modified costs rule of Aarhus Convention apply to the licensing of fish farming

Facts: Following the judgment of the Court denying leave to seek judicial review of the impugned decision of the first named respondent and imposition of costs, the applicant now sought an order modifying said order regarding costs. The applicant contended that the costs imposed should have been modified in the light of the Aarhus Convention, which had been made part of Irish Law.

Mr. Justice Gerard Hogan refused to grant an order modifying the costs in the present case. The Court held that a plain reading of s. 6(a) of the Environment (Miscellaneous Provisions) Act 2011 provided implementation of the modified costs rule to the judicial review proceedings that came within scope of s. 4 of the Environment (Miscellaneous Provisions) Act 2011. The Court held that the licensing regime under the Fisheries (Amendment) Act was outside the scope of the special costs rule contained in the 2011 Act. The Court opined that Irish Law did not expressly make provisions for the incorporation of the costs rule contained in the Aarhus Convention except under s. 3 to s. 7 of the 2011 Act. The Court found that Directive 2011/92/EU categorically pointed out that the judicial review proceedings in which there was a material non-compliance of a procedure or substantive requirement of the said Directive should benefit from the modified Aarhus Convention costs rules.

WATERVILLE FISHERIES DEVELOPMENT LTD v AQUACULTURE LICENSES APPEALS BOARD & MIN FOR AGRICULTURE UNREP HOGAN 8.4.2014 2014 IEHC 248

WATERVILLE FISHERIES DEVELOPMENT LTD v AQUACULTURE LICENSES APPEALS BOARD & MIN FOR AGRICULTURE UNREP HOGAN 25.7.2014 2014 IEHC 381

FISHERIES (AMDT) ACT 1997 S73

EEC DIR 2011/92 ART 11

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S7(1)

CONSTITUTION ART 29.6

SWEENEY v GOVERNOR OF LOUGHLAN HOUSE OPEN CENTRE & ORS UNREP SUPREME 3.7.2014 2014 IESC 42

CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 9(3)

CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 9(4)

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 PART II

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S8

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S3

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S4

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S5

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S6

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S7

MCCOY & SOUTH DUBLIN CO COUNCIL v SHILLELAGH QUARRIES LTD & MURPHY UNREP BAKER 16.7.2014 2014 IEHC 511

KIMPTON VALE DEVELOPMENTS LTD v BORD PLEANALA UNREP HOGAN 4.10.2013 2013/29/8482 2013 IEHC 442

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS ACT 1998 S20B

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (AMDT) ACT 2012 S1

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S6(A)

CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 9

EEC DIR 2011/92 RECITAL 18

EEC DIR 2011/92 RECITAL 19

EEC DIR 2011/92 RECITAL 20

EEC DIR 2011/92 RECITAL 21

CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 6

EEC DIR 2011/92 ART 11(1)

EEC DIR 2011/92 ART 11(4)

EEC DIR 2011/92 ART 4(2)

EEC DIR 2011/92 ANNEX II PARA 1(F)

EEC DIR 2011/92 ANNEX II

1 1. This is now the third judgment which this Court has given in respect of judicial review proceedings involving a decision of the Acquacultural Licenses Appeals Board ("the Board") dated 31 ^st October, 2012. By that decision the Board had confirmed an earlier decision of the Minister for Agriculture, Fisheries and Food on 22" March, 2011, to grant a temporary licence for the amendment of operating procedures to the notice party, Silver King Seafoods Ltd. ("Silver King") in respect of the latter's salmon farming site at Deenish Island, Ballinskelligs Bay, Co. Kerry.

2 2. In the first judgment delivered on 8 ^th April, 2014 ( [2014] IEHC 248) I held that the applicant had the requisite locus standi to pursue this application for judicial review. I also ruled that the proceedings were not in themselves irregularly constituted and were valid.

3 3. In the second judgment delivered on 25 ^th July 2014 ( [2014] IEHC 381) I held that while the Board ought to have given written reasons for its failure to hold an oral hearing in respect of this application for a temporary licence in respect of the proposed amendment to Silver King's operating procedures, this did not mean that the applicant could show the existence of substantial grounds within the meaning of s. 73 of the Fisheries (Amendment) Act 1997 by which the validity of that licence could be successfully challenged. As I explained (at paragraphs 28-29 of the judgment):

2 "28. ....no conflict of fact which is central to the outcome of the licensing process has been identified. In these circumstances, the Board was entitled to conclude that no oral hearing was necessary.

29 Against that background, therefore, it cannot be said that - at least so far as the present case is concerned - the failure to give reasons in respect of the decision not to hold an oral hearing is likely to render the substantive decision invalid or liable to be quashed in circumstances where there was no underlying obligation to hold such a hearing. The Board certainly erred in law in failing to provide such reasons (or, alternatively, not providing objective justification for the failure to do so). Yet there is no nexus between this procedural failure - important and significant as it admittedly is - and the ultimate decision regarding the grant of the temporary licence. This is especially so given that there was no obligation to hold an oral hearing in the circumstances of this case."

4 4. It followed, therefore, in the wake of these conclusions that the application for leave to apply for judicial review would have to stand dismissed. On 31 ^st July 2014 I then made certain orders for costs in favour of the two respondents and the notice party. One might have been forgiven for thinking at that juncture that the entire proceedings were at an end. The applicant nevertheless subsequently brought a motion dated 6 ^th October 2014 seeking a declaration that such costs as were ordered against it in these proceedings should not be, having regard to the provisions of Article 11 of Directive 2011/9EU, "prohibitively expensive." This application raises again the manner in which the Aarhus Convention (1998) has been transposed into our domestic law.

5 5. It is certainly unfortunate that this application was made at this belated stage. Section 7(1) of the Environment (Miscellaneous Provisions) Act 2011 ("the 2011 Act") envisages that any such application for a modified costs order (or some variant of this, such as a protective costs order) should be made "at any time before or during the course of the proceedings." There is much force in the argument which was advanced by the respondents to the effect that the court is now functus officio given that the costs order has already been made and time for an appeal has expired. I will, however, assume for present purposes that I have a jurisdiction to entertain this motion.

The status of the Aarhus Convention in Irish law

6 6. The Aarhus Convention (or, to give it its full title, the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters) is an international agreement which was negotiated under the auspices of the UN Economic Committee for Europe. Although it is in strictness simply a regional agreement, it is quite possibly the most influential international agreement of its kind in the sphere of international environmental law. Perhaps one of the reasons that the Convention has proved to be so influential is that it has been ratified by the European Union and that it has been transposed into certain key areas of EU environmental law, on which the latest version of the Environmental Impact Assessment Directive (2011/92/EU) is only the most prominent example.

7 7. Save for the special case of where the Aarhus Convention has been transposed into EU law (which I will consider presently) and, by that process, has become part of Irish domestic law as a result, it is clear that, having regard to the provisions of Article 29.6 of the Constitution, the Convention is otherwise only part of domestic law to the extent to which such either has been or may be determined by the Oireachtas. This point is doubtless beyond controversy, but a recent application of these well established principles in the context of a different international convention (namely, the Strasbourg Convention on the Transfer of Sentenced Persons) may be found in the judgment of the Supreme Court in Sweeney v. Governor of Loughan House Open Prision [2014]IESC42.

8 8. The relevant provisions of the Aarhus Convention so...